Defining Online Political Advertising: How Difficulties in Delineating Paid Political Communication Can Be Addressed

Finding guidelines to ensure fair online political campaigning will be one of the key issues for European policymakers to tackle when devising regulation for digital platforms. In traditional media, paid political communication is typically regulated, recognizing the potential impact that political ads can have on individuals and on societal debates. Paid political communication as a form of political speech seeks to shape opinions on candidates, policies, ideas and issues of public concern that can impact not only individuals, but communities and their legislative agendas. This is fundamentally different from ads seeking to shape buying habits or attitudes towards commercial brands, products and goods. 

It has become commonplace for political parties, candidates and movements to use online advertising on social media, video apps, search engine result pages and other digital platforms. Just like in other parts of the world, Europe has witnessed growing expenditures and a growing number of political online advertisers and ads over the past years. While such political ads on large platforms can be helpful to reach niche audiences and mobilize voters, they have also been used in negative campaigning, to demobilize voters, especially minorities, to skew public debates in favor of wealthy advertisers, and to spread disinformation. 

So far, political ad rules made for the offline media and information environment have not widely been adapted to deal with the online ad space and its potential dangers related to data-driven, targeted and algorithmically delivered ads. Under public pressure and in the absence of up-to-date regulation, corporate actors have therefore created their own definitions and rules for dealing with paid political communication. These definitions and measures vary considerably across platforms. Some platforms have banned political ads, with some exceptions, while others apply special restrictions. How well and consistently platforms enforce their definitions and rules is crucial, but there are few openings for independent auditing and oversight. This undermines public interest scrutiny of paid political communication online. 

The European Union (EU) has the opportunity to address this gap by devising guidelines for paid political communication online. Apart from legislative initiatives in several member states, the European Commission is expected to tackle this issue in two of its flagship tech regulation proposals, the Digital Services Act (DSA) and the European Democracy Action Plan (EDAP). These proposals can be used to establish transparency and accountability standards for paid political communication online. At the core of developing such standards lies the question of how to delineate paid political communication from personal opinions and purely commercial, transactional advertising for goods and services. The lines for this distinction were already blurry in the traditional, offline ad space, but have become even blurrier in the past years as online advertising grew. For example, there are now more and different types of advertisers that can be political, such as non-party groups and social media influencers. Advertising is not restricted to elections anymore but happens throughout the entire legislative cycle and covers many issues not related to candidates and elections at all. 

In light of the difficulties to determine who qualifies as a “political” advertiser or where the line between ads on social issues and those deemed “political” is, it is more useful to set a mandatory baseline for ad transparency for all online advertising. Online ads rely on personal behavioral data that is used for targeting by advertisers and for algorithmic ad delivery by platforms. To allow public interest scrutiny of this type of advertising, it is necessary and justified to require advertisers and advertising platforms to provide meaningful transparency on their ads. This includes mandatory ad databases, ad disclaimers for citizens and advertiser verification mechanisms. 

Further measures to ensure accountability and public interest scrutiny might necessitate a clarification as to what political advertising is. To that end, certain core political advertisers should be defined that are always considered political, for instance, political parties, candidates, parliamentary groups and lobby associations. They could face heightened scrutiny for their paid communication, such as financial reporting requirements or spending caps. Actors that are financially or otherwise connected to these core advertisers could be deemed political advertisers on the periphery and in such cases be subject to additional scrutiny as well. This might apply to social media influencers and non-party campaigns. These definitions would cover a wide range of political advertising online. Issue-based advertising, however, might fall out of the scope of this approach, even though it is an important facet of online political advertising. This could be addressed by mandating meaningful labeling and self-reporting options at platforms, so that advertisers can flag their paid messages as political. While leaving some uncertainty, this is preferrable to companies or governments deciding on their own what is “political” content and thus subject to political ad rules.